The thinking behind this blog is really simple: The guilty should be prevented from reoffending and the innocent should not be convicted -- not very complex but often not achieved.

The spotlight is also thrown on feral law enforcement

Sunday, August 02, 2015

Disquieting law enforcement behaviour in Australia

Customs officer confiscates passenger's phone and then uses it to secretly text

A customs officer at Sydney international airport confiscated a mobile phone from a passenger during a baggage search and then secretly used it to send and receive messages without the passenger's knowledge.

The November incident has been referred to the Australian Federal Police, but the new Department of Immigration and Border Protection has refused to release further details, prompting widespread concern and a call for a federal police investigation into the actions of the customs officer.

The passenger, a 22-year-old man who did not wish to be identified, discovered what had happened only when he received a letter from the Integrity and Professional Standards branch of the department, saying it was investigating the "inappropriate use" of his phone by the customs officer.

The letter dated nearly six months later, said "this behaviour does not uphold the standards expected of our officers at the border and on behalf of the department and the ACBPS [Australian Customs and Border Protection Service] I apologise that it occurred. The letter said the "appropriate steps" were being taken in relation to the incident.

The man told Fairfax Media last week he was "disgusted" when he found out what had happened.

"It is embarrassing for them. They obviously have something to hide."

The Department of Immigration and Border Protection refused requests for information by Fairfax Media under freedom of information laws in part to protect the privacy of the officer and would not reveal what the messages said, who they were sent to and why.

A spokesman said "Under section 186 of the Customs Act 1901, officers have the power to examine goods in certain circumstances. 'Goods' includes electronic devices, such as mobile telephones. Access to the passenger's phone was consistent with the act."

The revelations have alarmed civil libertarians and prompted Greens Senator Sarah Hanson-Young to refer the matter to Australian Federal Police to investigate the wrongdoing.

Senator Hanson-Young said the secrecy of the department and the behaviour of the customs officer involved raises questions about the culture of the Border Force.

"Tampering with an individual's phone like this is illegal," she said.

"Why is the department being so secretive about the case? I have written to the AFP and asked them to investigate."

Professor Michael Fraser, the director of the Communications Law Centre at UTS, said unless there was some lawful reason – which needs to be given – the department needed to justify why the phone was used.

"The person has a right to know what communications were made on his phone," Professor Fraser said.

Stephen Blanks, president of the NSW Council of Civil Liberties, said "this is frightening".

"The Australian people should be frightened that a public official in a position of apparent authority can illegally access people's phones and send messages and then the department thinks that is not a matter of public interest. That is the kind of secrecy a police state relies on to damage the reputation of people who are being targeted," Mr Blanks said.

The man told Fairfax Media he was stopped when leaving Australia for a holiday in Turkey and Cyprus visiting his parents. He was taken to a room where Customs and AFP officers were present. They took his phone and computer and demanded the access codes and then took his phone into another room where he could not see what was happening.

During the time he was detained and searched, the man said he was asked weird questions including how many times a day he prayed? Was his family religious? And did they have a lot of money?

By the time he was released he had missed his flight. No one has since offered to refund his fare. After organising another flight, he was again stopped by Customs and the second time he called his solicitor, he said.

After tense conversations and the customs officers refusing to speak to his lawyer, he was eventually allowed to travel and he returned in December. His solicitor Zali Burrows has been instructed to commence legal proceedings against the department.

The decision not to release any information did say the incident had been "self-reported" the day after by the officer and his supervisor.

It revealed two documents existed that the department would not release – an Integrity Complaint Assessment Report and an internal minute dated December 16, 2014.

No documents showed that the matter had been referred to any other authority such as the Australian Commission for Law Enforcement Integrity which is the federal watchdog, or even that the minister had been had been informed.

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Dedication

In memory of Fatty Arbuckle, a good and innocent man whose movie career as a comedian was ruined by an opportunistic prosecution. The woman he was accused of murdering almost certainly died of natural causes. He was eventually cleared but the damage was done.

A thought

I love the Mae West story where some judge wearing a robe during the middle of the day, and seated in a high chair peered down and asked her, 'Are you showing contempt for my court?' To which she replied, 'I’m doing my best not to show it, your honor.' Maybe we need to give up trying to not show it."